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Right to private defence under the Indian Penal Code, 1860 is available to an innocent person. It is not a right to retribution. Analyze.
Importance of this question : This question was asked as question 1(b), compulsory part - Paper 2 -UPSC Law Optional Mains 2019
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IMPORTANCE OF THIS QUESTION | This question was asked in MPJS 2019 ( Click the link for answer : https://www.lawxpertsmv.com/forum/judicial-services/13-04-2021-question-on-ipc-asked-in-mpjs-2019-evaluated-copies)
and in a lot of judicial exams too.
Thus private defense is an important topic which shall not be skipped for Law Optional ( UPSC ) and also Judicial Service Exams.
ANSWER | Relevant section – 96 of IPC
Section 96 of the Indian Penal Code says that, ‘Nothing is an offence which is done by a person in the exercise of Right to Private Defense.’
EXAMPLE | X try pull my dupatta down to plunder my chain away, I kick his bike to stop him. X falls down and gets hurt badly. Now I can claim right to private defense and I am not guilty.
But this right to private defense has certain rules – viz,
Right to private defense can be exercised against offences only. "Offence" is defined under Section 40 IPC and such offence must be either against human body or property as per section 97 IPC .
Right to private defense is not an offence, thus, where an act is done in exercise of the right of private defense, such act cannot give rise to any right of private defense in favor of aggressor in return. Thus private defense is not available to aggressor.
Mannu v State of Uttar Pradesh | Accused party attacked deceased party in market, they both fought and accused party also sustained losses. Court held accused cannot claim private defense.
It can be exercised against the aggressor whose actus reus is causing reasonable apprehension of danger of any offence affecting human body or property.
Private defense not available against lawful acts. CASE LAW | Kanwar Singh v Delhi Administration : Accused restrained authority from seizing cattle’s, court held its not private defense. Only innocent can take private defense and not defaulter.
No private defense to unlawful assembly | SIKHAR BEHERA v STATE : Both parties assembled with arms, Court held : They cannot claim private defense as it was unlawful assembly.
Right to private defense cannot be vindictive | CASE LAW : State of UP v. Ram Swarup : Accused and deceased had heated arguments in market. Accused left to bring back his son, who shot dead the deceased. Accused claimed private defense : Court held : Its vengeance and private defense not applicable.
Once the threat dies the right to private defense also dies. A fleeing person cannot be harmed in name of private defense
CASE LAW | Jai Dev v. State of Punjab : Accused bought a land in village and started to farm on it. Villagers angered by the occupation of land by X, came in large number with arms. Accused shot a person dead and also shot 2 villagers who were fleeing. Court rightly held shooting of fleeing person is not private defense while killing first person while threat existed would be private defense.
Analysis | Thus, according to above points right to private defense is available to the innocent person against the offender and it is not a right to retribution, it is exercised only when there is apprehension of commission of any offence against himself or other or his own property or others property as provided by Section 97 of IPC.
Right to private is defense must be exercised proportionate to the harm apprehended and therefore, person cannot use more force against the apprehender than required. Section 99 provides limitations on the exercise of Right to private defense. Right of private defense can be exercised by a person until the apprehension of assault or harm exists.
CONCLUSION | If above principles not followed then the main idea of private defense – which allow anyone to safe oneself without waiting for state help will become meaningless.
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